Sunday, January 06, 2013

Goodwin Liu Doesn't Like The First Amendment?

While Seidman was preaching contempt for the Constitution, the radical former law professor Goodwin Liu, whose nomination by Obama to be on the Ninth Circuit Court of Appeals was thwarted by the Senate, was counseling evasion of the First Amendment. (After his federal appeals court nomination was defeated, he was appointed by California Governor Jerry Brown to the California Supreme Court.) With Liu voting in the majority, the California Supreme Court undermined property rights and the First Amendment rule against content discrimination by forcing an employer to host union picketing on its own private property. Liu argues that speech by businesses or other economic entities, or on their premises, can be sharply restricted by the government, to achieve the goals of the modern regulatory state: he approvingly cites progressive legal scholars exulting that “large areas of communication still remain untouched by the First Amendment,” and that “the state [supposedly] may criminalize speech [that] is face-to-face, informational, particular, and for private gain.” This claim is at odds with the First Amendment’s established protection for commercial speech, which liberal justices once defended more avidly than conservatives, before they became less enthusiastic than conservatives about it, as American conservatism became more tolerant, and American liberalism decayed into controlling statist orthodoxy.

Alarmingly, Liu also approving cited a left-leaning legal scholar’s claim “the First Amendment’s coverage in the civil context may be partly explained by the existence or absence of a sympathetic class of litigants or a well-entrenched regulatory scheme.” So if Goodwin Liu doesn’t empathize with you, you apparently don’t deserve free speech (an outlook that echoes Obama’s claim that empathy rather than purely legal considerations should dictate the outcome in certain cases). Liu also argues that “the Supreme Court has consistently rejected First Amendment challenges to content-based speech regulations in the context of labor relations” and that content-based restrictions on speech are just fine in areas like antitrust law. (His argument gives short shrift to Supreme Court decisions limiting the reach of labor and antitrust law on First Amendment grounds, cases like BE&K Construction v. NLRB and the Noerr-Pennington line of cases, and lower court rulings limiting federal law’s reach over speech, like Rodriguez v. Maricopa Community College, and White v. Lee.) Once upon a time, left-leaning judges were more likely to rule in favor of free speech than conservative judges, but, alas, that time has long passed, and UCLA law professor Eugene “Volokh found that the conservatives have been considerably more likely to vote in favor of First Amendment claimants than liberals on the [Supreme] court” since 1994.

Liu’s pinched interpretation of the First Amendment came in a case known as Ralph’s Grocery v. United Food and Commercial Workers Union Local 8. In its decision in that case, the California Supreme Court refused to follow a federal appeals court ruling invalidating a requirement that employers host labor picketing, but not other picketing (Waremart Foods v. N.L.R.B. (2004)). The state supreme court disregarded the fact that a California statute imposing this requirement discriminates based on the content of speech without any compelling reason for doing so (the union could have picketed instead on nearby public property, without trespassing on the employer’s property). It rejected the employer’s challenge to forcing it to host the picketing, based on the reasoning that the employer’s property was not a public forum, which turns logic upside down, since the fact that the employer’s property was not a public forum is an added reason to leave it alone, and since the purpose of public-forum analysis is to distinguish among different owned government-owned settings based on whether public debate is permitted there (such as distinguishing a public park designed partly for speaking and assembly, from a government office designed for working, not public intrusion or debate), not to deny the First Amendment’s protection in private settings where First Amendment norms protected speech even before the concept of a public forum was invented — and which thus are fully protected against government meddling by the First Amendment regardless of whether they resemble “public forums.” As the Ninth Circuit Court of Appeals once noted, “Private property affords the strongest protection to free speech,” so speech in a company-owned bus shelter would be just as protected as speech in a government-owned public forum. Metro Display. Advertising, Inc. v. City of Victorville, 143 F.3d 1191, 1195 (9th Cir. 1998). (For example, your home is not a public forum, but that doesn’t mean the government can restrict speech there — the Supreme Court has said that the government cannot restrict the books that you possess in your own home, even if they contain obscenity that could be banned in public forums, and it has no more power to ban signs that you display from your home based on their viewpoint than it does to ban such signs in traditional public forums.)

Libs would be more honest if they just admitted they wanted to get rid of the Constitution, but then again, libs aren't known for their honesty.

36 comments:

I am delighted that Rio Americano alumnus, Goodwin Liu, is the Supreme Judge and Sole Arbiter of All Legal Matters, as the linked/quoted article clearly portrays.

Workers allowed to provide information at their place of wprk? Doesn't sound like an affront to the First Amendment or the US Constitution to me. Beyond that, the article was a sloppy mess of spin and personal opinion. The kind of thing you like if you like that kind of thing.

I'm just glad that Justice Liu is allowed to rule on these matters without the need to convince at least three other judges of the position he, alone, decides to take. It would be bad if California's Supreme Court had seven justices and Liu were the least senior of them all. That'd be awful!

And I hope you donated to OpenMarket.org, they've got their cap in hand, begging for $5/mo to support their efforts to restore America's liberty. I am given to wonder which liberties have been taken from us that $5/mo can help to restore.

So, Dean Baird thinks the article is "spin and personal opinion", but offers no rebuttal to any of its points. He further thinks that the weasel words "Workers allowed to provide information at their place of work?" is not spinning anti-company picketing. How about corporations being allowed to decide what takes place on company property? Does that figure into freedom of speech or property rights? Oh, I forgot, according to "progressive thinking", property is theft.

Liu is a product of his education, which in this case, is exemplified by Mr Baird. Our children are indoctrinated by the left and they grow up to be leftist. Protest that and you're a racist, misogynist, or idiot.

First, the larger point . . .I would much rather have justices with differing points of view forming any supreme court than I would the current system, where the USSC has four liberals who always vote the same way, four conservatives who always vote the same way (except, unfortunately, on Obama care) and, where 95% of the time, the relatively free-thinking Anthony Kennedy is the deciding vote. Give me 9 of him, people who will weight the issue and vote their conscience, and I'm happy. Even if I disagree sometimes. On Liu'c view in this particular case? I'm split. The employer has propert rights, and should not be coerced in to allowing picketers on their private property. The sidewalk nearby? Yes. the property itself? no. On the other hand, it is entirely reasonable to allow union organizers to distribute information on site, provided that they are not on the clock.

Like every other one-party state, California will find itself not doing as well as others will--or as well as it could. I don't see the Republicans going the way of the Whigs; who would the country turn to when they finally decide they want some adults in charge?

I don't know SacBee columnist Dan Walters' political leanings, but it's hard to disagree with his thesis here: Democrats now control all the strings in the state Capitol.

They can, at least on paper, do anything they wish without giving Republicans anything more than cursory attention.

However, sole ownership also means sole responsibility. No more pointing the finger at recalcitrant Republicans. No more excuses

Yes, when I was a first-year teacher, new to the profession, new to the school, new to the city, and new to the state, I saw Goodwin (one of my 150ish students) as needing serious lefty indoctrination. Despite the temporary nature of my contract, I decided we should spend our time in physics and AP Physics discussing the merits of socialism, the importance of First Amendment protections, the evils of free enterprise, and so on.

It was my good fortune that that's exactly what this affluent community wanted in a physics teacher! I brought my guitar, we sang songs of The Worker and World Peace. There was no time for mundane topics like motion, forces, energy, momentum, heat, light, sound, electricity, and magnetism.

After years of this behavior, I was even honored by B. Hussien Obama with a Presidential Award for Excellence in Mathematics and Science Teaching! Google it!

Actually, we never talk politics in physics. There's really only one instructor at my school who surprises students with a level of political banter incongruous with the subject matter being taught. And it's not me!

Elaborate sarcasm. Could there be any more compelling evidence of a mighty intellect at work?

Ooops, I guess I'm doing it as well, hey Dean?

At least it's clear you have no defense to offer for a state Supreme Court justice who believes freedom of expression should be limited to those ideas with which he agrees. Otherwise you'd offer that defense in place of a yard of smarm. You must be a Bill Maher fan.

1. No crankiness. And I have very little use for Bill Maher. He's an Atheist, but he's no skeptic/critical thinker.

2. Supreme Court rulings, as fortune would have it, never turn on the opinion of a single justice. The Supreme Court majority held an opinion you dislike. And the sky remained aloft. You are free to howl, wail, and gnash teeth to your heart's content about the merits of the decision. But you are absolutely wrong to ignore how a court works and "blame" its most junior member for the ruling.

Darren drove a long way out of his way to name drop Goodwin Liu. And he beamed with knowing glee that I responded. His trap was masterful, and I walked right into it.

Had the issue been the ruling, I would have gladly ignored the post. But I was, instead, a sloppy attempt at a convoluted smear. So I called it out as such.

Pretty simple, really. As far as sarcasm goes, Allen, I merely study at feet of the blog owner. The pH of my acid is no match for his. Your heated outrage at my comments leads me to believe you only detect sarcasm when its pointy end is directed to the right. When pointed to the left, it's simply speaking Truth.

Dean, please. Sarcasm is part and parcel of your trade. Please don't attempt to flatter me, you know you're a master of it.

Why do you make up this whole straw man about one justice making law? You're the only one who says that. The link in this story only pointed out that Liu's opinions are, uh, extremely biased in a way I myself wouldn't support. That he doesn't get to enforce his views on us unilaterally doesn't make them any less palatable.

Dean, please. Sarcasm is part and parcel of your trade. Please don't attempt to flatter me, you know you're a master of it.

Why do you make up this whole straw man about one justice making law? You're the only one who says that. The link in this story only pointed out that Liu's opinions are, uh, extremely biased in a way I myself wouldn't support. That he doesn't get to enforce his views on us unilaterally doesn't make them any less palatable.

1. Don't flatter yourself. You and Maher are interchangeable with regard to your determination to see sarcasm as thoughtful discourse.

2. Supreme Court rulings sure as heck do often depend on a single vote and you know it. That's why Supreme court appointments and elections are such heatedly partisan elections; a change of a single justice can make or break legislature. Hell, in some cases the right justices obviate the need for legislation. Isn't that an exciting prospect for everyone who sees the elective process as being entirely to subject to the will of "the masses"?

But let's not stray as far as you'd like from from the issue at hand which is of a California Supreme Court justice who believes freedom of expression is far too dangerous to let just anyone engage in the practice. Some may enjoy the right which in Liu's interpretation looks rather more like a privilege and others may not.

A majority on SCOTUS requires an agreement of five individuals. Admittedly, Justice ThomaScalia is given two votes, but that's just the way it is.

A majority in the Supreme Court of California requires an agreement of four individuals.

These courts are composed of an odd number of justices so as to avoid ties. You can kid yourself that one person (the swing vote) is the sole decision maker, but doing so ignores the true nature of the court.

Max, I don't want 9 Kennedys on SCOTUS, I want three of each: three on the left, three on the right, and three in the middle. My experience with conservatives is that they want 9 Scalias. It's a reflection of their insecurity.

"Where 95% of the time, the relatively free-thinking Anthony Kennedy is the deciding vote."

The decisions that make the news are the ones where the country is strongly divided on the desired outcome, often along political lines. 95% of probably involve Anthony Kennedy as the deciding vote.

I've read, but forget the source, that most US Supreme Court cases have lopsided majorities. And having spent some time reading cases for fun I believe it.

A very unrandom sample, the now current (as of January 9, 2013) latest slip opinions:

SMITH v. UNITED STATE Unanimous, "SCALIA, J., delivered the opinion for a unanimous Court."

ALREADY, LLC, DBA YUMS v. NIKE, INC. unanimous opinion, with an additional concuring opinion written by Kenney and joind by two conservatives and one liberal. "ROBERTS, C. J., delivered the opinion for a unanimous Court. KENNEDY, J., filed a concurring opinion, in which THOMAS, ALITO, and SOTOMAYOR, JJ., joined."

LOS ANGELES COUNTY FLOOD CONTROL DISTRICT v. NATURAL RESOURCES DEFENSE COUNCIL, INC., ET AL. Eight justices signed on to the opinion of the court. And Alito makes the judgement unanimous. "GINSBURG, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, KENNEDY, THOMAS, BREYER, SOTOMAYOR, and KAGAN, JJ., joined. ALITO, J., concurred in the judgment."

ARKANSAS GAME AND FISH COMMISSION v. UNITED STATES Unanimous among the eight justices who considered and decided the case, "GINSBURG, J., delivered the opinion of the Court, in which all other Members joined, except KAGAN, J., who took no part in the consideration or decision of the case."

NITRO-LIFT TECHNOLOGIES, L. L. C. v. EDDIE LEE HOWARD ET AL. Per curiam with no dissent. Wikipedia, Per Curiam decision, "In law, a per curiam decision (or opinion) is a ruling issued by an appellate court of multiple judges in which the decision rendered is made by the court (or at least, a majority of the court) acting collectively and anonymously. In contrast to regular opinions, a per curiam does not list the individual judge responsible for authoring the decision,[1] but minority dissenting and concurring decisions are signed."

UNITED STATES v. BORMES Unanimous, "SCALIA, J., delivered the opinion for a unanimous Court."

Out of seven cases, one case where the judgement was unanimous but one justice disagreed as to the opinion, one case with unanimous opinion with four justices, who are members of all three "factions", signing an additional concurring opinion. And none of those will make national news.

PS, I'm sorry this is not wrapping correctly, not sure what I did to break wrapping.

I'd be happy with three of each as opposed to what we have now . . . My point about Kennedy was that he can't really be pigeonholed. In my opinion, he is the only current jusatice who actually considers the issue, applies the constitutiuon, and attempts to get make the correct decision as opposed to the ideological . . .3 of each would merely give us what we have now, plus two more swing votes. It would be better, but not ideal. The problem is . . .each side is so afraid of the other stacking their side (which they would undoubtedly do) that each tries to get the most conservative or liberal justice they can in an attempt counteract the appointees of the other. To pick a rational moderate would be to 'waste' a pick. And so we get moderates only by saccident.

I guess I can understand why our lefty correspondents are anxious to change the subject from the appointment of a judge whose interpretation of the Constitution seems to be summable as "whatever I say it is".

While lefties adore the possibility of turning rights into privileges, never giving a second's thought to the possibility that such illegitimate power might be wrenched from their noble hands they know, in general, better then to be too overt in their admiration of the efficiency of totalitarian regimes. Judges, however, have to render opinions and Justice Liu's opinions indicate he's a lefty to the core. Since there's no changing the opinions he's rendered the subject's got to be changed.

As usual Dean, wrong. We don't want 9 Scalia's. We want 5 Scalia's and 4 Thomas's. To make it simple because you need it simple, we want justices who will rule is an act of the government is constitutional and if the Constitution is silent, leave it to the legislative and executive branches.

5 Scalias and 4 Thomases IS 9 Scalias. But you knew that. And allen . . . if your so in love with the conservative side of the court, how do you feel about that eminent domain decision a few years ago, where the conservatives said it was cool to use eminent domain not for public works, but rather to increase tax base?

Wow . . . if I'm wrong on that one, I'm wrong. But I was sure the eminent domain debacle was conservative based. Let me do some research -- it may be a different, but similar decision. I don't have a dog in this fight . . .I'm a libertarian, and I respect Kennedy and Scalia . . .and no one else -- particularly Thomas, who is Scalia's lap dog. But if I'm wrong, I'll cop to it.

Mike AT . . . you are entirely correct. The eminent domain travesty was liberal side driven. And, an awful decision. It doesn't change my position that I would like more free thinkers on the court, but it does make me wrong.

MikeAT. . . do i not get any credit for acknowledging that I was wrong? I don't know why I thought that was a Scalia decision, but i did. I am the last to push either a liberal or a conservative agenda . . . I would just like the supreme court to honor the constitution. both the conservative and the liberal sides seem to not want to do that.

Your post saying Kelo wasn’t a Scalia decision wasn’t posted when I put up my last post. Thank you for the acknowledgment.

My admiration for Scalia (and Thomas) is the fact he strictly interprets the Constitution. One thing he uses is a dictionary from the late 1700s so he can look at what words meant back then. That’s not a lack of “free thinking” but an acknowledgement that the document means what it says and says what it means. In a republic judges, if the Constitution is silent, should defer to the legislative and executive branches. Unlike them, the Congress and President are accountable to the people and can be restrained.

Another abortion of constructional law is Roe vs Wade. The Construction says nothing about abortion and it’s not in the enumerable powers of the Congress or President. It’s up to the states to manage. Britain liberalized its abortion laws in the 1960s and abortion is not the open wound on its society like it is with us.

Mike AT . . . no offense taken, and you're welcome. When I'm wrong I admit it . . .I think there was a Scalia based decision that came out about the same time that I also disagreed with vehemently, and I may have confused the two. I'll have to find it . . . Shoickingly, I agree with you about Roe vs. Wade . . .the logic is completely convoluted, despite the fact that I would like to see abortion remain safe, legal, and rare, as Clinton once said . On the other hand . . .while we're dealing with state's rights issues. . . what about gay marriage, speed limits, ages for alcohol purchase (new york and hawaii, among others was 18 for a long time, education, drug laws, and so many others . . . it's like none of the justices have bothered looking at amendments 9 and 10.

what about gay marriage, speed limits, ages for alcohol purchase (new york and hawaii, among others was 18 for a long time, education, drug laws, and so many others . . . it's like none of the justices have bothered looking at amendments 9 and 10.

To get to the point, that’s not for the feds to decide and those are state issues. One point was made by a former Houston mayor to a then new city councilman named Michael Berry (now a local talk show host). The mayor’s advise was simple, focus on doing the basics, but do them well. No one will remember the 999 times your garbage was picked up but they will always remember the one time it was late. And I wish our Congress and President would act more like that.

Back to the 9th and 10th Amendments, I wish the federal government would actually follow the limits of the document. The the judiciary would stop them from expanding the powers of the legislative and executive branches, as well as the bureaucracy. Protect our borders, defend the nation, keep our currency strong but leave people alone. Yes, simplified but if I was king of the US one the first day I would ax the Departments of Education, Energy, HUD, DHS, DVA (tie it’s legit functions back into DOD).